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THE LIBRARY

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THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



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A TREATISE



ON



THE AMERICAN LAW



OF



REAL P Pv P E R T Y.



BY

EMORY WASHBURN, LL.D.,

BU8SEY PBOFE8ROK OF LAW IX IIARVAKO IMVEIWITY ; ACTHOB OF A TBE.\.TI8E
ON TUE AHEUICA^' LAW OK EASEMENTS AXO SEBVITUDES.



VOLUME in.



FOURTH EDITION.



BOSTON:

LITTLE, BROWN, AND COMPANY.

1876.



T



Entered according to Act of Congress, in the year 1860, by

EMOKY WASHBURN,

In the Clerk's Office of the District Court for the District of Massachusetts.



Entered according to Act of Congress, in the year 1864, by

EMORY WASHBCRX,

In the Clerk's Office of the District Court for the District of Massachusetts.



Entered according to Act of Congress, in the year 1868, by

EMORY WASIiniRX,

In the Clerk's Office of the District Court for the District of MassachusetU



Entered according to Act of Congress, in the year 1876, by

EMOKY WASIinrUN,

In the Office of the Librarian of Congress, at Washington.



CAMBRrDGE:
PRESS OF JOHX WILSON AND SON.



Page
1



CONTENTS.

Volume III. begins with Title at page 398 of Volume II. first edition.

BOOK III.

ACQmSITION AIsD TRANSFER OF ESTATES.

CHAPTER I.

TITLE BY DESCKNT.

SECTION I.

Title ppiif rally con8idere<l

SECTION II.

5
Title by descent

21
Statute rules of descent

CHAPTER II.

TITLE OTHKU TIl.VN BY GRANT.

SECTION I.
Escheat

SECTION n.

r, 50

Occupancy

SECTION IIL

51
Prescription and limitation



64817^



IV CONTENTS.

SECTION IV.
Accretion 55

SECTION V.
Abandonment 61

SECTION VI.
Estoppel 69

SECTION vn.

Possession and limitation 123

Local statutes of limitation 166



CHAPTER III.

TITLE BY GRANT.
SECTION I.

Public grant 13q

SECTION II.
Office grant 208

CHAPTER IV.

TITLE BY PRIVATE GRANT.

SECTION L
General requisites of grant by deed 232

SECTION II.
Execution of deeds 269

SECTION III.
What property may be granted by deed 340

CHAPTER V.

FORMS OF CONVEYANCE BY PRIVATE GRANT.



CONTENT^. V

SECTION I.
Deeds at common law and their characteristics 350

SECTION n.
Deeds under the statute of uses 354

SECTION m.
Deeds in use in the United States 358

SECTION IV.
Component parts of deeds 363

SECTION V.
Covenants in deeds 446



CHAPTER VI.

TITLE BY DEVISE 500

APPENDIX.

Nature and form of a marriage settlement 543

Index 553



LAW OF REAL PROPERTY.



BOOK III.

ACQUISITION AND TRANSFER OF ESTATES.

CHAPTER I.

TITLE — DESCENT.

•SECTION I. [*398]

TITLE GENERALLY CONSIDERED.

1. Title defined.

2. Tlie different stages of title.

3. All title liy descent or purchase.

4. Title by act of law and of parties.

1. Having treated of estates with their qualities and inci-
dents, both as to corporeal and incorporeal hereditaments, it
now becomes proper, in pursuing the objects of this treatise,
to consider the subject of the titles by which these estates are
acquired and held, with a view, in the end, to speak of the
modes of transmitting such estates by law from one person
to another. It would obviously be of little importance, beyond
embodying certain speculative and abstract notions in respect
to the forms which property may assume, to define and illus-
trate the nature and qualities of estates, if law did not go
further, and determine by what rule the ownership of such
property, or what is commonly called the title, may be ac-
quired, held, or parted with, by individuals. It is to this
part of the general subject that the attention of the reader



2 LAW OP REAL PROPERTY. [BOOK III.

is now to be directed. It is somewhat difficult to define, in
brief terms, precisely what is meant by title. But it
[*399] may, perhaps, be sufficiently accurate to * adopt the
words of Lord Coke, who defines it as 'â– 'â– justa causa
possidendi quod nostrum est^ and signifieth the means whereby
a man cometh to land, ^t dicitur titulus a tuendo^ because
by it he holdeth and defendeth the land." ^ Mr. Burton says :
" Every title must rest ultimately upon mere possession."' Lord
Kaimes, while treating of the history of property, says : " It
is taught by all writers that occupation is an essential solem-
nity in the original establishment of land property." " But
so soon as property came to be considered as a right, inde-
pendent of possession, it was natural to relax from the solem-
nities formerly requisite to transfer land property." ^ And,
after all the speculations in which these writers have indulged
upon the origin of individual property in any portion of what
must once have been a common heritage, it seems, upon their
hypothesis, to resolve itself back to possession as its element,
but to have derived from an enjoyment, sufficiently continued,
an abstract notion of ownership, to which the word property
is applied, which becomes susceptible of being transmitted to
others, by being accompanied by a symbolic, rather than an
actual, formal transfer of possession.* " Property " is defined
by Taylor as " an exclusive right. That is said to be really
and emphatically mine when I have a right and power or
faculty of denying others the use and fruit of it. Dominium
is the attribute of the proprietor, and proprietas of the thing so

* Note. — Mr. Maine, in his learned and ingenious essay upon "Ancient
Law," combats the notion of Blackstone and otlier writers upon the subject,
that property in a thing must have been originally derived from occupancy. " I
venture," says lie, " to state my opinion, that the popular impression in reference
to the part played by occupancy in the first stages of civilization directly re-
verses the truth." " It is only when the rights of property have gained a sanc-
tion from long practical inviolability, and when the vast majority of the objects
of enjoyment have been subjected to private ownership, that mere possession
is allowed to invest the first possessor with dominion over commodities in which
no prior proprietorship has been asserted," p. 256. The whole discussion upon
the subject, of which the above is but a single thought, will repay the reader
who may study the eighth chapter of his work with attention.

1 Co. Lit. 345 b. 2 Burt. Real Prop. § 418; Kaimes, Law Tracts, 98.



CH. I. § l.J TITLE — DESCENT. 3

appropriated." ^ Title to property created merely by the act
of reducing it to possession necessarily imj^lies that this reduc-
tion to possession should be effected by an act which is not of
a wrongful nature. This was appHed to the killing of game
by a trespasser upon another's land. The game thus killed
was the property of the land-owner ratione soli as soon as
killed, and killing it by the trespasser gave him no right of
property in it,^

2. Blackstone divides title to lands, considered in its pro-
gressive development, into several stages ; namely,
naked possession, * right of possession, right of prop- [*400]
erty witliout possession, and right of property united
with the right of possession.^ This idea of Judge Blackstone,
whicli lias been adopted by Mr. Cruise and other writers, is
illustrated by an act of disseisin, followed by possession by
the disseisor. If a disseisor enters upon the land of another,
and evicts or turns the true owner out of possession thereof,
although in one sense, as between him and the true owner,
lie has no right or title whatever to the land, yet, as to all
the world but him, the possession so gained gives him com-
plete dominion over and right to the land, and constitutes, in
the eye of the law, a pmna facie title thereto. In the mean
time, liowever, the one who has been wrongfully evicted has
a right to the possession which the disseisor has usurped and
retains, so that here is a naked possession in one, and a right
to the immediate possession in another. In every State, where
the common law prevails, possession of lands, for a period of
time sufficiently long, is held to divest the owner thereof of
his right to regain his possession by his own act, without the
aid of legal process. If, therefore, in the case supposed, this
possession shall have been continued by the disseisor for the
requisite length of time, nothing will remain in the original
owner but a right of property, while the possession, and right
of [lossession, will have become united in the disseisor. It only
remains, then, lor the right of property to become united with

' Civil Law, 47G.

a Blades i;. Higgs, 11 H. L. Cas. 021; Rigg v. Lonsdale, 1 H. & N. 937;
ante, vol. 1, p. *i

3 2 Bl. Com. iyj-199.



4 LAW OF REAL PROPERTY. [bOOK III.

the possession, and right of possession, to perfect the disseis-
or's title. And here again, for the sake of quieting titles, there
is, in every State, a period beyond which no man may enforce
his naked right of property, after he shall have lost his right
of possession ; and if, in the case supposed, he suffers the dis-
seisor to retain the possession beyond this prescribed period
of time, no one can call in question the right of property as
well as of possession of the latter, and he thereby becomes
clothed with a complete title to the land ; or, as Lord Coke

says, it was anciently called jus duplicatum^ droit
[*401] droit} * Judge Walker, in his introduction to the

American law, disposes of this question in these
words : " Such refinements serve to perplex rather than in-
form the mind. The truth is, title means the same thing as
ownership, A man may be in possession of a thing which he
does not own, and he may own a thing of which he is not in
possession." " It would seem, therefore, that the perfection
of title consists in the union of possession with the right of
possession ; for when these meet in the same person, he cannot
be rightfully dispossessed. In other words, he is the lawful
owner of the property ; and this is the whole of the matter." ^

3. In one thing all writers agree, and that is in considering
that there are two modes only, regarded as classes, of acquir-
ing a title to land ; namely, descent and purchase ; purchase
including every mode of acquisition known to the law, except
that by which an heir, on the death of an ancestor, becomes
substituted in his place as owner by the act of the law.^

4. Some writers make a distinction, in respect to estates
acquired by purchase, between titles created by act of the
law and those by act of the parties, estates by escheat being
an example of the first class. Others still incline to regard
estates in dower and by curtesy as properly coming within
the doctrine of descent.*

1 2 Bl. Com. 195-199; Co. Lit, 266 a ; 3 Cruise, Dig. 312-315; 4 Kent, Com.
373 ; Giiierbock, Bracton by Coxe, 100 ; Reeves' Hist. 4tli ed. 234.

2 Walk. Am. Law, 317.

3 2 Bl. Com. 241 ; James i'. Morey, 2 Cow. 290; Co. Lit. 18 b.

4 3 Cruise, Dig. 317 ; 2 Flint, Real Prop. 446 ; Co. Lit. 18 b, note 106; 4 Kent,
Com. 373, note.



CH. I. § 2.] TITLE — DESCENT.



SECTION II.

TITLE BY DESCENT.

1. Title by descent defined,

2. Heir created only by law.

3. Title by heirship not till ancestor's death.

4. Heir's title is independent of his own act.
5-7. Origin and changes in English law of descent.

8. Hale's canons of descent.

9. All rules of descent arbitrary and artificial.
10. Feudal rules never adopted here.

IL Rules of construction as to descent.

12. Rules for computing degrees of kindred.

13-19. English canons of descent.

20. What is accounted as " lands."

21. American law of descent traced to the civil law.

22, 23. How civil law differs from American and English law.

24. Seisin necessary to create one a stirps.

25. Common law as to seisin of reversions, &c.

26. Statutes here affecting descents of reversions, &c.

27. Statutes here as to ascending and collateral inheritance.

28. Inlieritance by those of half-blood.

29. Who is of the blood of him wlio was last seised, &c.

30. Postliumous children as heirs.

31. Illegitimate children when heirs.

32. Lex loci regulates descent of land.

33. Of descent from aliens.

84. When child is heir in place of father.

35. Heir disinherited only by express devise.

36. Title by descent prior to that by devise.

37. Title of ancestor vests at once in his heir.

38. What to be proved to show collateral descent.

39. What is embraced under "ancestor."

40. Effect of omission of child's name in a will.

41. Marshalling assets in paying ancestor's debts.

42. What interests in lands are descendible.

43. Rents descendible.

44. Of advancement.

Note. — Statute Rules of Descent.

1. In what is said of the subject in the following pages,
the ordinary division of titles into those by descent and those
by purchase will be observed. And first of descent.
" Property of * lands by descent is," says Lord Bacon, [*402]
" where a man hath lands of inheritance, and dieth,



6 LAW OP REAL PROPERTY. [BOOK III.

not disposing of them, but leaving it to go (as the law casteth
it) upon the heir. This is called a descent of law." ^

2. The heir, as the term is here used, is always appointed
by the law ; for all persons appointed by a tenant in fee-sim-
ple as his successors are technically not heirs, but assigns,
whether the appointment be by deed or by will, in which
respect the common differs from the civil law, it being a maxim
of the feudal law, that solus Deus potest facere Jmredem, non
Jiomo?

3. The title of an heir is called into existence by the death
of the ancestor, for nemo est hceres viventis ; although, in pop-
ular phrase, certain persons are regarded as the heirs of per-
sons still alive, under the names of heirs apparent and heirs
presumptive. Thus, an heir presumptive is a person who, if
the ancestor were then to die, would be his heir ; as, for in-
stance, in England, a daughter, if an only child, would be
heir presumptive of her father ; but if he were subsequently
to have a son, she would cease to be such heir. An heir ap-
parent is one who is certain to be the heir of an ancestor if he
survive him, as is the case in England with the oldest son ;
since, by the canons of descent there, he is sure to be his
father's heir if he outlive him.^

4. An heir-at-law is the only person who, by the common
law, becomes the owner of land without his own agency or
assent. A title by deed or devise requires the assent of the
grantee or devisee before it can take effect. But in the case
of descent, the law casts the title upon the heir, without any
reg.ard to his wishes or election. He cannot disclaim it if he
would.4 Where an heir takes undevised property, he never
takes it by act or intention of the testator. His right is para-
mount to and independent of the will.^ An heir is entitled
to rents of undevised lands until sold for the payment of debts,
even though the ancestor die insolvent.^ And where a rail-

1 Bac. Law Tracts, 128.

2 Co. Lit. 191 a, note 77, § v. i. For what are "assigns," see Metcalf v. West-
away, 17 C. B. n. s. 668.

3 2 Bl. Com. 208. < Wms. Real Prop. 75 ; 2 Bl. Com. 201.

5 Augustus V. Seabolt, 3 Met. (Ky.) 161.

6 Lobdell V. Hayes, 12 Gray, 238; Gibson v. Farley, 16 Mass. 280; Newcomb
X) gtebbins, y Met. 540. Kimball v. Sumner, 62 Me. 305.



CH. I. § 2.] TITLE — DESCENT. 7

road was laid across the land of an ancestor after his decease,
his heir was held entitled to the damages, though the land
was subsequently sold for payment of debts. ^

5. In tracing the history of the law of descent of lands in a
former part of this work,^ it was stated that " chil-
dren, at * first, succeeded to a feud in the place of [*403]
the father, and grandchildren in the place of children."

In a treatise called " The Laws of Hen. I.," the doctrine of
excluding females is promulgated ; and it is declared that
the capital fief should go to the oldest son. And this is said
to have been the first notice of the English doctrine of primo-
geniture in the law of descent.^ The rest of the ancestor's
lands were to the younger son or sons.*

6. In the time of Henry II., however, the oldest son had
become sole heir to all lands held by military tenure ; nor
could his right be defeated by an alienation of the ancestor,
though socage lands, unless there was some cystom to the
contrary, descended to sons equally. If the ancestor left no
sons, both military and socage lands descended to daughters
in equal shares, the oldest having the capital messuage, upon
making compensation to the other daughters, but all taking
as coparceners.^

7. In the time of Henry III., or soon after, both socage and
military lands descended according to the rules of primogeni-
ture.^ But it is not known when collaterals first took in suc-
cession, though the usage prevailed in the time of Henry II.,
that brothers and sisters should take if there were no lineal
descendants ; or, if they were dead, their children were to
take in their stead. After these, the uncles and their children
came in ; and, last, aunts and their children ; the males always
being preferred to females.'^ The approach to this system of
rules, however, was gradual and by degrees only, though it
is difficult to trace the stages of the progress.^ In the time of
Henry IH., the vw\q jus descendit ad primogenitum was estab-

1 Boynton v. Peterborough, &c. R. R. 4 Cush. 467. 2 j^nte, vol. 1, p. *67.

5 1 Spence, Eq. Jur 175. * Reeve, Hist. Eng. Law, 30, 1st ed.

6 Reeve, Hist. Eng. Law, 30; 1 Spence, Eq. Jur. 176 ; Dalrymp. Feud. Ten.
205.

6 1 Spence, Eq. Jur. 176. ^ Reeve, Hist. Eng. Law, 32.

8 Dalrymp. Feud. Ten. 216-221.



8 LAVr OF REAL PROPERTY. [bOOK IH.

lished, and all descendants, in infinitum, from any person
who would have been heir if living, inherited Jure
[*404] representationis. Thus * the oldest son dying in the
lifetime of the father, and leaving issue, that issue
was to be preferred in inheritancy to the grandfather before
any younger brother of the father.^ The father, it will be
perceived, or any lineal ancestor, was never allowed to suc-
ceed as heir to a descendant, or, as Bracton says, " nunquam
reascendit ea via qua descendit, post mortem atitecessorum.'' ^

8. Lord C. J. Hale is said to have reduced the rules of
descent to a series of canons, although these rules had then
been in use for four hundred years ; and no change was made
in them until the act of 3 and 4 Wm. IV. c. 106, in 1833.3

9. It is hardly necessary to add, that whatever may be the
rules of descent of property in any country, they must, of
necessity, be more or less arbitrary and artificial ; " the crea-
tures of the civil polity and juris positivi merely," to quote
the language of Blackstone. What these rules shaU be, must
therefore, in the nature of things, depend upon the condition
and genius of the people among whom they prevail ; and it
could not be expected that the systems which different na-
tions may have respectively adopted will be found to be in
all respects the same.

10. It would accordingly be found that the system of rules
developed under the feudal notions of the middle ages,
though maintained for so many ages in the mother-country,
were not in accordance with the genius and condition of her
Colohies in this country ; and that, at an early period in their
history, important departures from these canons were made
in the progress of their legislation. Massachusetts, in 1641,
divided estates equally among children, except giving the
oldest son a double share.* When these Colonies became
States, each had its own system of rules for the government
of property within its limits, some of them varying essentially
from those of the others, and all from the English common
law. And these changes were followed in the end by that of
England, in 1833, already mentioned, which introduced ma-

1 Reeve, Hist. Eng. Law, 227 ; Bract. Lib. 2, pp. 64, 65.

2 2 Bl. Com. 211 ; Bract. Lib. 2, p. 62. 3 Wms. Real Prop. 76.
* Col. Laws, 205.



CH. I. § 2.] TITLE — DESCENT. 9

terial modifications in the ancient canons, and ren-
dered the system in many * particulars more conform- [*405]
able to the prevailing spirit of legislation upon the
subject in this country. Under these circumstances, it would
obviously be loading these pages with useless and obsolete
learning to give in detail the former sj^stem of legal rules
upon this subject which prevailed in England. And yet, in
order that the reader may be able to understand enough of
this system to apply the propositions and illustrations so often
made by courts and legal writers when treating of kindred
topics, and at the same time to see to what point the law
has been carried by the changes which the recent legislation
of England and of the several United States has effected in
this respect, it seems necessary to state as briefly as may be
the early canons of the English law of descent, together with
the substance of the existing laws of these States upon the
same subject, and sucli a reference to decided cases as may
aid the reader to understand and apply the rules of law which
may be found at present to prevail.

11. Before doing tliis, it seems proper to call the reader's
attention to certain familiar rules of construction which are
of constant reference in construing and applying the provi-
sions of these several S3'stems, and all of which have their
origin in the common law. And first as to lineal and col-
lateral descent, and the modes of computing the degrees of
affinity between two persons related to each other, which
have been applied under these various systems.

Consanguinity, or kindred by Ijlood relationship, is the con-
nection or relation of persons descended from the same stock
or common ancestor. This common ancestor, to whom refer-
ence is made in computing the degrees of affinit}'^ to determine
the nearness or remoteness of relationship of different per-
sons akin to each other, is commonly spoken of as the stirps
or root^ sometimes the stipes, the trunk or common stock
from which the line or lines of descent are traced. This con-
sanguinity is either lineal or collateral. It is lineal when it
exists between persons descended in a direct line one from
the other, as father, grandfather, and the like, in an ascending
line, and son, grandson, and the like, in the descending line.



10 LAW OF REAL PROPERTY. [bOOK IIL

It is collateral when they are descended from a com-
[*406] mon stirps, or stock, but not one * from the other.

Thus a man and his nephew are collaterally related,
as each may trace his line of descent to the same common
ancestor, the father of the one being also grandfather of
the other. And at the distance of twenty generations, as
illustrated by Blackstone, a man has above a million of ances-
tors ; while if one's ancestors had left upon an average two
children apiece, and each of those children two, and so on
through fifteen generations, every man would have, of collat-
eral kindred now subsisting in the fifteenth degree, almost
two hundred and seventy millions.^

12. By the canon and common law, which concur in this
respect, the degrees of kindred between two persons are reck-
oned by counting from a common ancestor to the most remote
descendant of the two from him. The relation of two
brothers is in the first degree, because there is but one step
from their father to either of them. But the relation of uncle
and nephew is in the second degree ; there being two degrees
from the nephew to his grandfather, the father of the uncle.
By the civil law, which is, in this respect, generally adopted
in this country ,2 these degrees are computed by adding to-
gether the number of degrees there are between each of the
two persons whose relationship is to be ascertained and the
common ancestor. Thus the relation between brothers is in
the second degree, each being one degree removed from the
father ; but between uncle and nephew it is the third, and
between cousins the fourth, degree of kindred.^

13. The first of the English canons of descent was, that the
inheritance should lineally descend to the issue of the person
who last died actually seised^ in infinitum, but never lineally
ascend. The seisin here meant must have been an actual, or
what was equivalent to an actual, corporal seisin.^ The
English law is now so changed, that the heir must be of the

last person entitled to the estate as a purchaser. So
[*407] that, if * one has an estate as heir from one who pur-
chased it, and dies, his heir does not inherit the estate

I 2 Bl. Com. 202, 206. '^ McDowell v. Addaras, 45 Penn. St. 430.

3 2 Bl. Com. 206, 207. * 2 Bl. Com. 208, 209.